We may revise the Terms and Conditions at any time, without notice to you, and with such changes to be effective immediately upon posting such changes on or through the Application.
If you do not agree to the Terms and Conditions, you are not granted permission to access, browse or use the galleryManager Application, and you must exit immediately.
If you register for a free trial of the galleryManager Application, the applicable provisions of these Terms and Conditions will govern that free trial.
1. Terms and Conditions of Service (TOS). Our monthly fee includes access to our galleryManager proprietary Application. The Application, all major or minor releases of the Application (if any), the complete source code and object code, and all permitted copies are and shall remain the sole and exclusive property and a valuable trade secret of galleryManager. galleryManager shall retain all rights, title and interest in any and all related patents, patent applications, copyrights, copyright applications, trademarks and trade names in the United States and elsewhere relating to the Application. You may not disclose or make available to third parties the Application or any portion thereof without our prior written approval. You may not modify, reverse engineer, decompile, disassemble or create derivative works from the Application.
2. Disclaimer. The product provided by galleryManager is provided “as is,” without warranty of any kind to the user or any third party, including, but not limited to, any express or implied warranties or merchantability of the application; fitness for your purpose or system integration; accuracy of informational content; corruption of files, incompatibility of equipment, errors, or non-infringement; quiet enjoyment; and title. The user agrees that any efforts by galleryManager to modify its application shall not be deemed a waiver of these limitations. These limitations shall apply notwithstanding any failure of any essential purpose of any limited remedy. galleryManager is also not responsible for the reliability or continued availability of the service you use to access the Web.
3. Limitation of Liability. In no event shall galleryManager, its providers and its third parties be liable to you (a) for any damages resulting from or related to any failure of the application, including, but not limited to, loss or destruction of data, failure, error, inaccuracy, unavailability, omission, delay, injury or negligence of galleryManager in the delivery of the application or in the performance of services under any agreement relating to the application and (b) for any indirect, special or consequential damages or lost profits, lost business revenue or failure to realize expected savings or opportunity arising out of or related to your use of the application, even if galleryManager has been advised specifically of the possibility of such damages, whether in contract, warranty, tort (including negligence), strict liability or otherwise.
4. Indemnification. You agree to defend, indemnify and hold harmless galleryManager and its employees, contractors, representatives, providers, officers, managers, affiliates and agents from and against all liabilities, claims, costs, damages, expenses, suits, actions or other proceedings, including reasonable attorneys’ fees, that arise out of or relate to (i) your use or misuse of the Application, your use or attempted use of any facility or equipment connected to the Application, or any viruses or other harmful components resulting from your use of the Application; (ii) your breach of these Terms and Conditions of Service; (iii) any third party using your computer or network to access the Application; (iv) any third party using your galleryManager account, where applicable; (v) any claim that the use of the galleryManager website infringes any intellectual property right of any third party, infringes any right of personality or publicity, is libelous or defamatory, or otherwise results in injury or damage to any third party; (vi) any deletions, additions, insertions or alterations to the Application by you or a third party using your computer or network; (vii) any misrepresentation or breach of misrepresentation or warranty made by you contained herein; or (viii) any breach of any covenant or agreement to be performed by you hereunder. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses. You acknowledge and agree that this indemnification includes reasonable attorneys’ fees incurred by us in seeking to enforce this indemnification against you by reason of your failure to indemnify galleryManager pursuant to this provision.
5. Modifications to Terms. We reserve the right, at our sole discretion, to change, modify, add or remove portions of the Terms and Conditions at any time by posting such changes on or through the Application. Please check these Terms periodically for changes. Your continued use of the Application after such changes have been posted as provided above constitutes your binding acceptance of such changes. Such amended Terms and Conditions will automatically be effective upon the earlier of (i) your continued use of the Application or (ii) 30 days from the posting of such modified Terms and Conditions on or through the Application. Notwithstanding the foregoing, the resolution of any dispute that arises between you and galleryManager will be governed by the Terms and Conditions in effect at the time such dispute arose.
6. Governing Law and Jurisdiction. These Terms and Conditions shall be construed and controlled by the laws of the state of New York without giving effect to conflicts of law principles thereof. You agree to submit to the personal jurisdiction of the state and federal courts located in New York County in the state of New York with respect to any legal proceedings that may arise in connection with galleryManager or from a dispute as to the interpretation or breach of these Terms and Conditions.
7. Our Responsibilities
7.1. Provision of galleryManager Services. We will (a) make the galleryManager Services, Content and Subscriber Data available to a Subscriber pursuant to these Terms and Conditions; (b) provide applicable standard support for the galleryManager Services to a Subscriber at no additional charge and/or upgraded support (for an additional charge, if applicable); and (c) use commercially reasonable efforts to make the galleryManager Services available 24 hours a day, seven days a week, except for (i) planned downtime, for which we provide advance electronic notice, and (ii) any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, flood, fire, earthquake, act of government, act of terror, strike, civil unrest or other labor problem, internet-service-provider failure or delay, or denial-of-service attack.
7.2. Protection of Subscriber Data. We will maintain administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Subscriber Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Subscriber Data by us, except (a) to provide our Services and to prevent or address service or technical problems, (b) as compelled by law in accordance with Section 10.2 (Compelled Disclosure) below or (c) as a Subscriber or User expressly permits in writing.
Our U.S. service providers are Privacy Shield compliant or have executed Standard Contractual Clauses (as approved by the European Commission) that provide legal grounds for assuring that, when processed in the United States, the personal data of EU citizens that is processed by galleryManager Subscribers when using the galleryManager Application will receive from us, and our service providers located outside of the EU, an adequate level of protection adherent to the meaning of Article 46 of Regulation (EU) 2016/679 (General Data Protection Regulation).
By agreeing to these Terms and Conditions, the Subscriber grants galleryManager a general authorization in the meaning of Article 28 (2) of Regulation (EU) 2016/679 to engage processors for the purposes of providing the galleryManager Services. We will inform the Subscriber of changes in such processors in accordance with the procedure of modifying these Terms and Conditions as outlined in these Terms and Conditions.
8. List of Processors:
Amazon Web Services
File-storage and backup services in the U.S. (Privacy Shield certified and GDPR compliant).
Database hosting for STG and PROD (Privacy Shield certified).
Credit card processing for monthly service fee (PCI compliant). Braintree is owned by PayPal. This category of company operates with significant financial-sector regulations, like PCI compliance.
Pipedrive is a sales-management tool designed to help small sales teams manage sales processes, allowing users to track pending sales activities (Privacy Shield certified and GDPR compliant).
JotForm JotForm enables individuals, companies and organizations to create online forms and collect responses directly via email (PCI compliant and GDPR compliant).
9. Using the galleryManager Services
9.1. Establishing an Account. Our Services can be used or accessed only by Subscribers to an Account. The person who wishes to create an Account and become a Subscriber must:
complete the sign-up form on the galleryManager website; and
choose a plan, and accept these Terms and Conditions by clicking “Accept” or other similar button.
If a Subscriber has designated Users and granted them Authorization, such Users will be deemed to be authorized to act on behalf of the Subscriber when using the Account. We are not responsible for, and shall have no liability for verifying the Authorization of any User.
9.2. Logging Into an Account. We shall provide the Subscriber with a username and password (“Login Credentials”) for logging into the Account. If the Subscriber has selected a Pro or Unlimited multiple-user Plan, each User will be provided with separate Login Credentials. The Subscriber and each User are responsible for keeping confidential all login credentials associated with an Account. The Subscriber must promptly notify us of any disclosure, loss or unauthorized use of any Login Credentials.
9.3. Fees. The use of an Account is subject to a monthly Fee. Upon activating an Account, the Subscriber must select a Plan. Different rates apply to different Plans. Regardless of the selected Plan, the first 30 days are free; we do not charge the Subscriber’s credit card for the first 30 days. All Fees are non-refundable, i.e., there are no refunds or credits for periods when the Subscriber did not use an activated Account, used it only partially, or deactivated the Account or terminated these Terms during an ongoing payment interval. If, after signing up, the Subscriber elects to upgrade to a more expensive Plan, the unused portion of any prepaid Fees shall not be applied to the Fee of the more expensive Plan.
All Fees are exclusive of all taxes, levies or duties applicable under any applicable law, unless otherwise stated herein. The Subscriber is solely responsible for the payment of such taxes, levies or duties.
9.4. Changing Plans. Any Subscriber has the right to upgrade or downgrade a current Plan at any time by selecting a new Plan in their account settings. In such an event, the Subscriber’s credit card on file with us will automatically be charged with a Fee for the next payment interval with the rate stipulated in the new Plan.
9.5. Free Trial. A new Subscriber is automatically granted a free 30-Day Trial; we do not charge your credit card for the first 30 days. The User is required to provide credit card information during the period of Free Trial. When the period of Free Trial has expired, the Account will be automatically activated and subject to a monthly Fee. In order to prevent deactivation or to reactivate the Account, we must have a valid credit card associated with the Account. If the Subscriber’s credit card is invalid, expired or declined over a period of two weeks, and we do not receive updated credit card information within two weeks of credit card deactivation (for reasons stated above), we have the right to permanently delete the Account, including all Subscriber Data therein.
10. Subscriber Data
10.1. Uploading Subscriber Data to the Application. If the Subscriber uploads Subscriber Data to the Application, such Subscriber Data and any processing of such Subscriber Data must be in compliance with these Terms and Conditions and applicable law. All rights, title and interest in and to the Subscriber Data belong to the Subscriber. By uploading Subscriber Data to the Application, the Subscriber authorizes us to process the Subscriber Data. The Subscriber is responsible for ensuring that:
the Subscriber and any Users associated with the Account do not create, transmit, display or make otherwise available any Subscriber Data that violates these Terms and Conditions; violates the rights of galleryManager or other Subscribers, organizations or persons; or is harmful (for example, malware, worms, viruses and other destructive codes), threatening, abusive, offensive, defamatory, harassing, vulgar, tortious, defamatory, obscene, hateful, invasive of another’s privacy or otherwise unlawful; and
the Subscriber and all Users associated with the Subscriber’s Account have the necessary rights to use the Subscriber Data, including the right to upload data into the Application and process it by means of the Account.
10.2. Compelled Disclosure. We may disclose a Subscriber’s confidential information to the extent compelled by law to do so. In such instance, we will use commercially reasonable efforts to provide the Subscriber with prior notice of the compelled disclosure (to the extent legally permitted), and the Subscriber shall provide reasonable assistance, at its expense, if the Subscriber wishes to contest the disclosure. If we are compelled by law to disclose a Subscriber’s confidential information as part of a civil proceeding to which we are a party, and the Subscriber is not contesting the disclosure, the Subscriber will reimburse us for the reasonable cost of compiling and providing secure access to that confidential information.
11.1. Use of the galleryManager Services. Subject to these Terms and Conditions, and the payment of the applicable service Fee, we grant the Subscriber and its authorized Users a non-exclusive, non-transferable, non-sublicensable license to use the galleryManager Services to:
collect, store and organize Subscriber Data, such as add new Contacts, artworks and images; generate reports based on Subscriber Data; add documents; create invoices and various transactions throughout the Subscriber Account; add new Users and grant them Authorizations; and assign Access levels to a particular User (if applicable);
modify and delete Subscriber Data; customize the standard features of the Account in Settings;
receive reasonable help and guidance from us regarding the use of the galleryManager Services.
11.2. Technical Support. We shall provide reasonable technical support to the Subscriber and its authorized User at the reasonable request of the Subscriber. We shall respond to support inquiries from a Subscriber as soon as reasonably possible.
The contacts for all inquiries of support are:
T: 1 (212) 625-9910
12. Data-Processing Contract. For the purposes of Article 28 of Regulation (EU) 2016/679, these Terms and Conditions constitute the data-processing contract between the Subscriber as the data controller and galleryManager as the data processor. The Subscriber hereby instructs galleryManager to process the data as described in these Terms and Conditions.
12.1. Subject matter and nature of processing. We provide the Application where the Subscriber, as the data controller, can collect, store and organize the personal data of data subjects determined by the Subscriber. The Application has been designed to work as a Software as a Service (SaaS) tool, but to the extent not regulated by these Terms and Conditions, the Subscriber decides how it uses the Application.
12.2. Duration. We will process data on behalf of the Subscriber until the termination of the galleryManager Services in accordance with these Terms and Conditions. Upon termination, we will store the Subscriber’s data for a period of one year, should the Subscriber wish to re-activate the Account to resume the use of the Application or to export Subscriber Data, unless instructed otherwise by the Subscriber. We delete or return all the personal data to the Subscriber (the data controller) after the end of the provision of services relating to processing, and delete existing copies unless Union or Member State law requires storage of the personal data.
12.3. Parties’ rights and obligations. The Subscriber’s rights and obligations regarding Subscriber Data are provided in these Terms and Conditions in Section 14. We ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. We take all measures required pursuant to Article 32 of Regulation (EU) 2016/679. We undertake to make available to the Subscriber (the data controller) all information necessary to demonstrate compliance with its obligations and to allow for and contribute to audits, including inspections, conducted or mandated by the Subscriber as the data controller.
14. Subscriber Data. (a) We respect your right to exclusive ownership of your Data. We do not use or display Subscriber Data, and would not do so without the Subscriber’s written consent. Unless specifically permitted by you, your use of the galleryManager Services does not grant us the license to use, reproduce, adapt, modify, publish or distribute your Data, created by you, or stored in your Account, for our commercial, marketing or similar purposes. The Subscriber expressly grants us the right to use and analyze aggregate system-activity data associated with the use of the galleryManager Application by the Subscriber and its Users for the purposes of optimizing, improving or enhancing the way the galleryManager Application functions, and to create new features and functionality in connection with our Application and Services. (b) The Subscriber is solely responsible for its own Subscriber Data and the consequences of posting or publishing it on or through the galleryManager Application. In connection with Subscriber Data, the Subscriber affirms, represents and warrants that the Subscriber either owns its Subscriber Data or has the necessary licenses, rights, consents and permissions to use and authorize galleryManager to display or otherwise use the Subscriber Data under all patent, trademark, copyright, trade secrets or other proprietary rights in and to your Subscriber Data in a manner consistent with the intended features of the galleryManager Application.
15. Feedback. If a Subscriber or User provides us with any comments, bug reports, feedback or modifications for the Application (“Feedback”), we shall have the right to use such Feedback at our discretion, including, but not limited to, the incorporation of such suggested changes into the galleryManager Application. The user hereby grants us a perpetual, irrevocable, non-exclusive, royalty-free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use your Feedback for any purpose.
16. Miscellaneous. You accept that galleryManager has the right to change the technical specifications of any aspect of galleryManager at any time in our sole discretion. The failure of galleryManager to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of the Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms and Conditions remain in full force and effect. No person or entity not party to this agreement will be deemed to be a third-party beneficiary of these Terms and Conditions or any provision herein. All rights not expressly granted by galleryManager herein are specifically and completely reserved.
17. Severability. If any provision of these Terms and Conditions is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms and Conditions will remain in force.
18. Entire Agreement. These Terms and Conditions and any other terms and conditions of the service provided by galleryManager and its successors constitute the entire agreement between you and galleryManager and govern your use of the Application.
19. Termination. Either you or galleryManager may terminate your use of the Application at any time and effective immediately. You may terminate your use of galleryManager by discontinuing your use of the Application or by sending an email message advising of your termination to galleryManager. galleryManager may terminate your use of the Application, in its sole discretion, with or without notice.
20. Effect of Termination. Upon termination we shall deactivate immediately. The contents of closed or terminated accounts are deleted within three months of the date of closure; backups are kept for one year. We reserve the right to permanently delete the Account after one year of the effective date of termination. If the Subscriber has specifically requested for an earlier deletion of the Account, we will fulfill the request within 15 working days of receiving the request. In such case, the Subscriber must stop using and prevent the further usage of the galleryManager Application, pay any amounts owed to us under these Terms and Conditions, and discharge any liability incurred by us under these Terms and Conditions prior to its termination.
Dated: May 24, 2018